Is the President Playing Fair During Recess? The Cordray Appointment

President Obama gave a recess appointment to Richard Cordray to serve as director of the new Consumer Financial Protection Bureau established under Dodd-Frank. With Senate Republicans vowing to oppose any nominee absent structural reform of the CFPB, a Republican filibuster last month blocked the Senate from securing cloture on Cordray’s nomination. Because recess appointments last until the end of the “next session,” Cordray’s appointment would last until the end of 2013.

Republicans immediately cried foul, with Senate Minority Leader Mitch McConnell arguing that the recess appointment “threatens the confirmation process and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive branch.” Speaker John Boehner called the move a “power grab,” and McConnell warned that the move took the White House into “uncertain legal territory.”

Republican consternation stems from the nature of the intra-session recess during which the president made the appointment. Using a tactic developed by Democrats during the second Bush administration, House and Senate Republicans refused to officially recess between the first and second sessions of the current Congress. Instead, the Senate has scheduled “pro forma” sessions every fourth day. Why every fourth day? Republicans maintain that unless an intra-session recess lasts longer than three days, it is technically not a “recess” and thus the president can’t exercise his Constitutional power to make recess appointments (circumventing Senate confirmation). The source of the “three day” rule turns out to be a Justice Department opinion issued in 1993 during the Clinton administration.

So did the president play unfairly during recess? Is the appointment on tenuous legal ground? Although Republicans will likely challenge the appointment in court, it’s hard for me to see the Cordray appointment as more than an aggressive use of executive power in face of the opposition’s foot-dragging over confirming a nominee to the CFPB. The Constitution doesn’t define what constitutes a valid recess for the purpose of the president’s proper exercise of the recess appointment power, leaving it open to interpretation. And the most recent court case on the matter—when Democratic Senator Ted Kennedy challenged the intra-session recess appointment of William Pryor to the 11th Circuit Court of Appeals in 2004—upheld the right of the administration to make a recess appointment on the 7th day of a ten day intrasession recess, noting the Constitutional ambiguity of a “recess.” (The Supreme Court declined to take up the case.) Nor does the longer historical record help us much in evaluating the president’s exercise of the recess appointment power. Intra-session recesses were rare before the 1940s given the structure of the Congressional calendar for much of the Congress’s history. Presidents from both parties have made intra-session recess appointments, and they’ll continue to.

Finally, it’s important to keep in mind why the White House is so eager to put a director in place. Certainly it fits the president’s electoral strategy of championing the rights of consumers as an advocate of the middle class and painting the GOP as a defender of dishonest financial lenders. But there’s a policy incentive to install Cordray as well. Under Dodd-Frank, new consumer protection powers can’t be exercised by the CFPB until a Senate-confirmed director is in place. Not to be too cynical, but does a recess appointee legally meet the definition under the law of a confirmed director? I sense a second legal challenge brewing.